J. Justin Wilson
J. Justin Wilson · January 21, 2020

Late yesterday, Governor Phil Murphy signed a bill (A4970) that will require a criminal conviction before civil forfeiture. Unlike criminal forfeiture, civil forfeiture typically allows the government to take and keep property without charging anyone with a crime.

Thanks to the governor’s signature, New Jersey is now the 16th state with a conviction prerequisite to forfeit property in civil court. A4970 also marks the latest in a rapid whirlwind of reform. Earlier this month, the governor signed a wide-ranging forfeiture transparency bill, which came shortly after the New Jersey Supreme Court unanimously vindicated the protection against self-incrimination in civil forfeiture cases.

“In the next session, we urge the New Jersey Legislature to end civil forfeiture and replace it with criminal forfeiture,” said Institute for Justice Senior Legislative Counsel Lee McGrath. “Ending the arbitrary practice of litigating the same alleged crime in two different court systems is the only real means to address this abuse.”

A4970 will require a conviction in criminal court before property can be forfeited in civil court. Prosecutors will need a conviction to civilly forfeit $1,000 or less in cash. For all other forms of property, including vehicles, electronics, jewelry, and other valuables, the conviction threshold rises to $10,000. Property under those thresholds must be returned if the owner is acquitted, if prosecutors fail to file charges, or if the state decides to dismiss the criminal prosecution.

Compared with the other 15 states with criminal-conviction requirements, New Jersey’s thresholds are some of the lowest.

Yet in recent years, the conviction requirement would have applied to the overwhelming majority of cars confiscated in the state. Between 2014 and 2018, district attorneys forfeited more than 1,200 vehicles, according to open records the Institute for Justice obtained from nearly every county prosecutor’s office.

Among those cars forfeited on the county level, over 90% were valued at or below $10,000. Collectively, the cars were worth nearly $5.75 million. During that same period, county and state law enforcement forfeited over $57.1 million in cash.

“No one should mistake this bill for a comprehensive fix of New Jersey’s shameful forfeiture laws,” McGrath added. “Far too many underlying issues remain unaddressed, including the perverse financial incentives that warp law enforcement priorities to pursue cash instead of criminals.”

Local law enforcement agencies can still retain up to 100 percent of the proceeds from forfeited property. The new law does nothing to close the equitable-sharing loophole, which has doled out more than $10.8 million in federal forfeiture money to New Jersey agencies in fiscal 2018.

Rather than help police fight crime, asset forfeiture is a source of revenue for law enforcement, a recent study from the Institute for Justice found. When local economies suffer, forfeiture activity increases, suggesting police make greater use of forfeiture when local budgets are tight. A 1 percentage point increase in local unemployment—a standard proxy for fiscal stress—is associated with a statistically significant 9 percentage point increase in seizures of property for forfeiture.

“New Jersey has some of the worst civil forfeiture laws in the nation, and we hope this legislation will build momentum for further reforms,” McGrath noted. “Along with our coalition partners at the ACLU of New Jersey and Americans for Prosperity, we will keep fighting until New Jersey’s rigged system is abolished, once and for all.”